Singh v Minister for Immigration and Multicultural Affairs
[2025] FCA 169
•4 March 2025
FEDERAL COURT OF AUSTRALIA
Singh v Minister for Immigration and Multicultural Affairs [2025] FCA 169
Appeal from: Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 183 File number(s): NSD 108 of 2021 Judgment of: DOWLING J Date of judgment: 4 March 2025 Date of publication of reasons: 11 March 2025 Catchwords: MIGRATION – appeal from decision of the Federal Circuit Court – whether primary judge made appealable error – no error of primary judge identified – appeal dismissed with costs Legislation: Migration Act 1958 (Cth) s 362B(1)(a)
Federal Court Rules 2011 (Cth) r 40.43, Sch 3
Migration Regulations 1994 (Cth) Sch 2
Cases cited: BAX16 v Minister for Immigration and Border Protection [2018] FCA 181
Bitek Pty Ltd v IConnect Pty Ltd [2012] FCA 506
CEA18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 855
Mailau v Minister from Immigration, Citizenship, Migrant Services & Multicultural Affairs [2023] FCAFC 12
MBJY v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCAFC 11; 284 FCR 152
O’Brien v Komesaroff [1982] HCA 33; 150 CLR 310
VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588
WG v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2024] FCAFC 3; 301 FCR 344
Division: General Division Registry: New South Wales National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 50 Date of hearing: 4 March 2025 Counsel for the Appellant: The appellant did not appear Solicitor for the First Respondent: Annabelle Wilford of Sparke Helmore Lawyers Counsel for the Second Respondent: The second respondent filed a submitting notice, save as to costs ORDERS
NSD 108 of 2021 BETWEEN: KULWINDER SINGH
Appellant
AND: MINISTER FOR IMMIGRATION AND MULTICULTURAL AFFAIRS
First Respondent
ADMINISTRATIVE APPEALS TRIBUNAL
Second Respondent
ORDER MADE BY:
DOWLING J
DATE OF ORDER:
4 MARCH 2025
THE COURT ORDERS THAT:
1.The name of the first respondent be amended to the ‘Minister for Immigration and Multicultural Affairs’.
2.The appeal be dismissed.
3.The appellant pay the first respondent’s costs in the amount of $4,000.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
(Delivered ex tempore; revised from the transcript)DOWLING J
INTRODUCTION
The appellant, Mr Kulwinder Singh, appeals from a decision of a judge of the Federal Circuit and Family Court of Australia. In that decision, the primary judge dismissed the appellant’s application for judicial review of a decision made by the Administrative Appeals Tribunal. The Tribunal’s decision affirmed a decision of the delegate to the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (of 30 October 2019) not to grant the appellant a Student (Temporary) (Class TU) visa. The primary judge’s decision is Singh v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCCA 183 (the primary judgment).
By his notice of appeal, the appellant relies on four grounds of appeal. Those grounds, as expressed by the appellant, are as follows:
(1)Hon judge failed to hold that administrative appeals tribunal made jurisdictional error of law when it took into account irrelevant consideration and misconduct the facts.
(2)I did not get justice.
(3)I am studying but AAT did not consider.
(4)When application lodge in AAT I am doing my study.
The appellant filed his notice of appeal on 12 February 2021. The appeal was allocated the hearing, of 4 March 2025, on 19 December 2024.
At 11 am on 3 March 2025, the day before the appeal hearing, the appellant contacted my chambers and advised that he was “unable to attend [his] scheduled hearing on 04/03/2025 due to recent illness”. The appellant further stated that he was “not in a condition to appear in court as [he is] currently receiving medical treatment”.
The email attached a medical certificate that relevantly provided that the appellant was “currently suffering with severe depression and anxiety”. The medical certificate further provided that he was “unfit for any work/study from 28/02/2025 to 06/03/2025 inclusive”. The medical certificate made no reference to the appeal hearing or provided any other information about the cause of the appellant’s illness or his prognosis.
At 1:09 pm on that same day, I sought the position of the Minister on the appellant’s request to postpone the hearing. The Minister said that he did not consent or oppose. He did say:
“The Minister accepts that [the medical certificate provided by Mr Singh dated 28 February 2025, and the appellant’s email to the Court dated 3 March 2025] provide some explanation for the requested adjournment. However, the Minister considers those explanations lack sufficient detail of how, or why, the appellant’s medical conditions render him unfit for ‘work/study’ during the period 28 February 2025 to 6 March 2025, and do not specifically address his ability to attend the scheduled hearing”.
At 3:55 pm on that same day, I advised the parties that I did not propose to postpone the hearing, and that if the appellant sought to rely on further material as to why he was unable to attend the scheduled hearing, it should be provided as a matter of urgency. I explained that the hearing would proceed at 10:15 am 4 March 2025.
On the day of the hearing, the appellant did not appear. The matter was called twice outside the courtroom, and the appellant did not appear. I subsequently adjourned the matter so that my chambers could contact the appellant by telephone and email. The appellant did not answer the telephone call from my chambers. My chambers attempted to leave a message but was unable to do so. Following this, my chambers emailed the appellant to inform him that my chambers had attempted to contact him by telephone, and that the matter had been called in Court. The email also confirmed that the hearing would proceed that day. Following the adjournment, the matter was called again outside the Court and the appellant did not appear.
Given the long history of this matter, rather than exercise any power in default of appearance, I have determined the matter on its merits. For the reasons that follow, I dismiss the appeal.
CHRONOLOGY OF EVENTS
The appellant is a citizen of India. On 12 August 2008, the appellant was granted a Student (Class TU) (subclass 573) visa. The appellant subsequently arrived in Australia on 12 September 2008. The appellant’s visa was valid until 18 May 2011. On 6 July 2011, the appellant was granted a further Student (Class TU) (subclass 573) visa which was valid until 1 September 2015.
On 31 August 2015, the appellant applied for a further Student (Temporary) (Class TU) (subclass 573) visa. The basis for the appellant’s application was his enrolment in a Bachelor of Business (Accounting) course at the Australian Institute of Business and Management Pty Ltd, which commenced on 13 July 2015 and was due for completion on 8 January 2018. The subclass 573 visa, which the appellant applied for, pertained to study in higher education sector. However, in the delegate’s decision record, the delegate stated that he took the appellant’s application to instead be for a subclass 572 visa, which pertained to study in the vocational education and training sector, because it satisfied the validity requirements of that visa type. In any case, though, the delegate considered the appellant’s visa application against the criteria for all subclasses within the Student (Temporary) (Class TU) visa class, being subclasses 570, 571, 572, 573, 574, 575, 576 and 580.
On 4 November 2015, a delegate of the Minister refused to grant the visa on the basis that the appellant did not satisfy the genuine temporary entrant criterion. This criterion was stated at cll 570.223,571.223, cl 572.223, 573.223, 574.223, 575.223 and 576.222 of Schedule 2 of the Migration Regulations 1994 (Cth), being the version of the Regulations in force as of 31 August 2015. The genuine temporary entrant criterion provided that:
(1)The Minister is satisfied that the applicant is a genuine applicant for entry and stay as a student because:
(a)the Minister is satisfied that the applicant intends genuinely to stay in Australia temporarily, having regard to:
(i)the applicant’s circumstances; and
(ii)the applicant’s immigration history; and
(iii)if the applicant is a minor – the intentions of a parent, legal guardian or spouse of the applicant; and
(iv)any other relevant matter; and
(b)…
In refusing to grant the appellant’s visa, the delegate was not satisfied that the appellant satisfied the genuine temporary entrant criterion. Instead, the delegate decided that the appellant was using the student visa program as a means of maintaining ongoing residence in Australia. In making his decision, the delegate gave weight to the fact that:
(1)in the seven years that the appellant had resided in Australia as the holder of a student visa, the appellant had been enrolled to undertake 27 courses. However, the appellant only completed seven of those courses and did not seem to have made significant progress or achieved a reasonable completion level for a student whose primary purpose in Australia was to progress academically;
(2)while the appellant was actively enrolled at the time in a Bachelor of Business (Accounting) degree, it had taken the appellant seven years to commence study in the Higher Education Sector in spite of the appellant holding a student visa since 2008;
(3)the courses that the appellant had enrolled in were of short duration, low cost and in unrelated fields of study (including hairdressing, business management and English language); and
(4)since arriving in Australia in September 2008, the appellant had only spent 27 days outside Australia, raising questions about the appellant’s ties to his home country and incentive to return to his home country.
On 25 November 2015, the appellant sought merits review of the delegate’s decision by the Tribunal. On 13 July 2016, the Tribunal affirmed the delegate’s decision, finding that the appellant did not intend to stay in Australia temporarily and therefore did not meet the genuine temporary entrant criterion (First Tribunal Decision).
The appellant subsequently sought judicial review of First Tribunal Decision before Barnes J of the Federal Circuit Court.
Before the Federal Circuit Court, the Minister, being the first respondent in that proceeding, conceded that First Tribunal Decision was affected by jurisdictional error. In particular, the Minister conceded that it failed to consider the submission provided to it by the appellant’s migration agent dated 2 May 2016 which was said to contain information relating to the genuine temporary entrant criterion.
On 4 December 2017, Barnes J quashed the Federal Circuit Court decision by consent and remitted the matter to the Tribunal for reconsideration.
On 22 August 2019, the Tribunal invited the appellant to attend for hearing on 12 September 2019. However, the appellant failed to attend. Accordingly, the Tribunal dismissed the application for non-appearance pursuant to s 362B(1A)(b) of the Migration Act 1958 (Cth). The appellant subsequently applied for reinstatement, and the matter was reinstated pursuant to s 362B(1C)(a) of the Act.
TRIBUNAL DECISION
On 30 October 2019, the Tribunal affirmed the delegate’s decision (Second Tribunal Decision). In considering the appellant’s claims and evidence, the Tribunal found that the issue before it was whether the appellant met the enrolment requirements for a student visa contained in cll 570.232, 571.232, 572.231, 573.231, 547.231 and 575.231 of Schedule 2 to the Regulations (from the version of the Regulations in force as of 31 August 2015, noting that the Regulations in force as at October 2019 contain equivalent requirements at cl 500.2 of Schedule 2).
The Tribunal notified the appellant of this requirement ahead of the hearing, including instructing the appellant to provide “document/s that show you are currently enrolled in a course, or have an offer of enrolment in a registered course, as required for the grant of a student visa”. The appellant did not provide any such evidence. The Tribunal noted in its statement of decision and reasons that the appellant informed them that “he was not enrolled or under an offer of enrolment”. The Tribunal further noted in its statement of decision and reasons that it raised with the appellant his enrolment record which indicated that he had not been enrolled as a student since 5 September 2017. The Tribunal noted that appellant responded that he “could not study” following the First Tribunal Decision due to poor mental health as a result of that decision. Thus, it was plain on the appellant’s own evidence and statements before the Tribunal that he was not enrolled in a course from 5 September 2017, nor was he under an offer of enrolment in a registered course.
In affirming the delegate’s decision, the Tribunal considered that at the time of its decision the appellant was not enrolled in a course of study or subject to a current offer of enrolment such that the requirements of cll 570.232, 571.232, 572.231, 573.231, 547.231 and 575.231 of Schedule 2 to the Regulations were not met. Further, the appellant had not been enrolled in a course of study for the previous two years. The Tribunal further found that there was no evidence to indicate that the appellant:
(1)met the criteria for the remaining subclasses of Class TU visas;
(2)was supported by the Minister under cl 576.229;
(3)applied for the visa on the basis of being a student guardian; or
(4)met any of the exceptions to cll 570.232, 571.232, 572.231, 573.231, 547.231 and 575.231 of Schedule 2 to the Regulations.
FEDERAL CIRCUIT COURT DECISION
On 12 November 2019, the appellant filed a judicial review application in respect of the Second Tribunal Decision. By amended application filed on 10 January 2020, the appellant raised seven grounds of judicial review. That application was heard by Judge Street of the Federal Circuit Court on 4 February 2021. Together with his seven grounds, the appellant also orally submitted that he was a “genuine student”.
Prior to addressing the grounds, Street J noted that the appellant had clearly been notified prior to the hearing before the Tribunal on the 30 October 2019 (which resulted in the Second Tribunal Decision) of the need for a course of enrolment for the grant of a student visa. Street J further noted that it was apparent that the appellant’s lack of a course of enrolment was also raised before the appellant in the course of the Tribunal hearing. Street J stated that it was in these circumstances that the Tribunal found that the appellant did not have a current course of enrolment: the primary judgment at [5]-[6].
In addressing the appellant’s oral submission that he was a genuine student, Street J found that the submission failed to address the sole issue before the Tribunal, being the requirement for a course of enrolment. His Honour noted that the appellant’s assertion of being a genuine student does not give rise to any error by the Tribunal: the primary judgment at [8].
In ground one, the appellant submitted that the Tribunal failed to consider his review application on “compassionate reasons”. His Honour found that compassionate circumstances were irrelevant to the issue before the Tribunal, being whether the appellant was enrolled in a course of study or subject to a current offer of enrolment: the primary judgment at [10]-[11].
In ground two, the appellant submitted that the Tribunal had refused to grant him a visa despite him explaining “everything” to the Tribunal. On the evidence before the Court, Street J was not satisfied that the appellant was denied a real or meaningful hearing, and that such a ground of appeal constituted an impermissible attempt at a merits review: the primary judgment at [12]-[13].
In ground three, the appellant submitted that his visa application was not properly assessed by the delegate. His Honour found that the delegate’s decision was irrelevant to establishing a case of jurisdictional error in the Tribunal’s conduct. To the extent that ground three could be read as a complaint against the Tribunal, Street J held that the Tribunal correctly identified the critical issues before it, including that the appellant was not enrolled in a course of study or subject to a current offer of enrolment in 2019: the primary judgment at [14]-[15].
In ground four, the appellant submitted that his visa was refused at a time when he was enrolled in a Bachelor of Business and that his visa was refused on “limited information”. Street J found that this ground reflected a disagreement with the adverse finding in the Second Tribunal decision. His Honour found that the Tribunal was open to make such an adverse finding: the primary judgment at [16].
In ground five, the appellant submitted that he had an intention to study, as evidenced by completing “so many [diplomas]” and subsequently enrolling in the Bachelor of Business. His Honour found that this ground merely asserts the courses the appellant has undertaken and does not identify any jurisdictional error: the primary judgment at [17].
In ground six, the appellant submitted that the “AAT and [delegate] both misuse[d] [their] power and they deliberately refused [the appellant’s] visa”. His Honour stated that the appellant did not identify any conduct giving rise to a claim of apprehended bias. On the face of the Tribunal’s reasons, Street J held the Tribunal approached its review with an open mind, reasonably capable of persuasion as to the merits. Accordingly, his Honour was not satisfied that the appellant’s allegation of bias was established: the primary judgment at [18]-[20].
In relation to ground seven, the appellant requested the primary judge “look in to [his] matter and grant [him the] visa”. His Honour noted that the Court has heard the matter and considered the whole of the evidence and submissions. His Honour was satisfied that this ground did not identify any jurisdictional error: the primary judgment at [21].
GROUNDS OF APPEAL
As identified above the appellant’s notice of appeal in the present proceedings raises four grounds of appeal, namely:
(1)Ground one: The primary judge erred in not finding that the Tribunal “took into account irrelevant consideration” and “miscon[strue] the facts”.
(2)Ground two: The appellant was not given justice.
(3)Ground three: The Tribunal failed to consider that he was studying.
(4)Ground four: When the appellant lodged an application for review before the Tribunal, he was a student.
Ground one
The Minister submitted that while ground one is framed as an error of the primary judge, the substance of ground one alleges errors by the Tribunal. As these contentions were not raised before the primary judge, the appellant requires leave to raise this ground for the first time on appeal. The Minister submitted that leave should be refused. He submitted that the most critical of the considerations for the grant of leave is the merits of the ground and that the ground has no merit.
Leave to argue a new issue on appeal should only be granted where the Court considers that it is expedient in the interest of justice to entertain the issue: VUAX v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 158; 238 FCR 588 at [46] (per Kiefel, Weinberg and Stone JJ) citing O’Brien v Komesaroff [1982] HCA 33; 150 CLR 310.
The interests of justice include consideration of the serious personal consequences for the appellant that may result from an adverse decision: Mailau v Minister from Immigration, Citizenship, Migrant Services & Multicultural Affairs [2023] FCAFC 12 at [105]–[107] citing with approval MBJY v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2021] FCAFC 11; 284 FCR 152 at [2] (per Allsop CJ) and [90] (per O’Callaghan and Colvin JJ).
In WG v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs [2024] FCAFC 3; 301 FCR 344 at [24], the Full Court stated:
There are no firm rules governing when the Court should grant leave to raise a fresh point on appeal, because the interests of justice is a broad consideration which will have different dimensions depending upon the circumstances of each case. In assessing individual cases, the Court commonly looks at the question whether there was any explanation for the point not being raised at first instance, whether there is prejudice to any party, and whether there is any merit in the new point, while at all times having regard to the administration of justice generally: see the summary of the principles in Tohi v Minister for Immigration, Citizenship, Migrant Services & Multicultural Affairs (2021) 285 FCR 187 at [110]–[112] (O’Bryan J, Katzmann J at [1] agreeing).
Even construing this ground, together with the grounds before the primary judge, as generously as possible, I accept the submission of the Minister that this is a new ground not raised before the primary judge.
There is no explanation for the ground not being raised before the primary judge. There is also no merit in the new ground. There was no explanation or particularisation of the irrelevant consideration said to be taken into account by the Tribunal. There was no explanation or particularisation of how the Tribunal misconstrued the facts. Nothing in the material before the Court discloses such a jurisdictional error.
It may be that the appellant intends to allege that he was an enrolled student at the time of the First Tribunal Decision. However, it was the Second Tribunal Decision that was the subject of the judicial review application before the primary judge. At the time of the Second Tribunal Decision, the appellant did not have a current course of enrolment and that was his evidence before the Tribunal at that time.
Again, endeavouring to construe the ground as generously as possible, the Minister suggested that the appellant may intend that the irrelevant consideration was that he was not an enrolled student, when at the time of the First Tribunal Decision he was an enrolled student. Any such argument must fail. As explained, the appellant accepted, at the time of the Second Tribunal Decision, that he was not an enrolled student. That was a mandatory visa requirement. It was not, and could not be, an irrelevant consideration (or a misconstruing of the facts).
I do not, in all of the circumstances, consider that it is expedient in the interests of justice to grant leave to amend the Notice of Appeal. Whilst having regard to the administration of justice generally, I have taken account of the personal circumstances for the appellant, but also, and significantly, the lack of merit of the proposed ground as explained above, and the lack of an adequate explanation to raise the ground before the primary judge. Had I granted leave to amend, I would have rejected the ground.
Ground two
Ground two contains an assertion that the appellant was not given justice. There was no explanation or particularisation of that ground.
In the appellant’s invitation to attend the hearing before the Tribunal, the appellant was invited to give evidence and present arguments relating to the issues that arise in his case, and in particular provide documents which indicate whether he is under a course or offer of enrolment. The appellant was not able to produce such documents or give such evidence. The appellant was also provided a statement of decision and reasons by the Tribunal that demonstrated that his evidence was considered by the Tribunal. The appellant then filed an application for judicial review of the Second Tribunal Decision, and subsequently amended that application to identify seven grounds of appeal. At the hearing before the primary judge, the appellant attended in person and made further oral submissions that he was a “genuine student”. The primary judge considered each of the appellant’s grounds of appeal, and further considered his oral submission that he was a “genuine student”.
Construing the ground as generously as possible, I am not able to identify any appealable error in the primary judgment, or jurisdictional error in the Second Tribunal Decision.
Grounds three and four
The third and fourth grounds both deal with the allegation that the Tribunal failed to consider that the appellant was studying, including at the time the appellant’s review application was lodged. The Minister submitted that these grounds raise the same complaint made in grounds two to four before the primary judge, namely that the appellant’s visa application was not “properly assessed” by the delegate and at the time of his refusal he was enrolled in a Bachelor of Business (Accounting) degree.
In dealing with grounds two to four below, the primary judge concluded that the dispositive issue before the Tribunal was whether the appellant was enrolled in a course of study at the time of its decision. The appellant accepted that he was not, and his Provider Registration and International Student Management System records confirmed that he was not. The primary judge noted that that matter was raised by the Tribunal with the appellant. The primary judge determined that the Tribunal had correctly identified the mandatory criteria and that its conclusion and reasons were open to it and that there was no error in its decision. I accept the Minister’s submission that there was no error in the primary judge’s conclusions or reasoning. There was no dispute that the appellant was not enrolled in a course of study at the time of the Second Tribunal Decision. That was an essential visa criterion.
These grounds do not identify any appealable error in the primary judgment, nor do they identify any jurisdictional error in the Second Tribunal Decision.
COSTS
The Minister sought an order for costs of $4,000 pursuant to r 40.43 of the Federal Court Rules 2011 (Cth), which provides for short form bills in migration appeals such as this. That rule relevantly provides that if a migration appeal is dismissed after a hearing, the successful party may claim the costs and disbursements of the appeal in the fixed amount set out at item 15.1(d) of Sch 3 of the Rules. The item provides for an amount of $8,323. The Minister submitted, and I accept, that the Court has a discretion in relation to costs to make a fixed costs order in a reduced amount: see BAX16 v Minister for Immigration and Border Protection [2018] FCA 181.
In all of the circumstances, I am satisfied that making a costs order of $4,000 is reasonable and “proportionate to the nature including the complexity of the case”: Bitek Pty Ltd v IConnect Pty Ltd [2012] FCA 506 at [18] and CEA18 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 855 at [45]. I am satisfied that fixing such an amount is an appropriate exercise of the Court’s discretion to fix an amount of costs. I will make an order in the terms sought by the Minister.
DISPOSITION
For all of the reasons set out above, the application for leave to amend the notice of appeal is dismissed and the appeal is dismissed with costs.
I certify that the preceding fifty (50) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Dowling. Associate:
Dated: 11 March 2025
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